An overarching principle in criminal law is that legislatures, and not courts, should define the contours of criminal prohibitions. (1) A prominent expression of this principle is the rule of lenity in statutory construction, which requires that judges resolve textual ambiguities in criminal statutes in favor of defendants. (2) The rule tends to promote "values of near-constitutional stature," such as fair notice, controlled discretion, and non-delegation of the definition of criminal conduct. (3) Recently, in State v. Grunke, (4) the Wisconsin Supreme Court held that the state's sexual assault statute (5) unambiguously criminalized sexual intercourse with a corpse even when the defendant did not cause the death of the victim. (6) This application of a criminal statute to conduct that the legislature probably did not intend to criminalize is in tension with the nondelegation principle underlying the rule of lenity. However, because the Grunke court found the text of the statute to be unambiguous, it did not even consider applying the rule of lenity. The rule of lenity should be expanded to allow for the consideration of extratextual evidence of ambiguity in order to ensure that criminal definition is confined to the legislative branch.

On September 2, 2002, Nicholas Grunke, Alexander Grunke, and their friend Dustin Radke attempted to excavate a female corpse at a local cemetery so that Nicholas could engage in sexual intercourse with the corpse. (7) The Grunkes and Radke brought excavation tools, a tarp, and condoms to the cemetery, and proceeded to dig a hole into the body's gravesite. (8) The three men managed to expose the top of the corpse's vault, but fled after being unable to open the vault and hearing another car driving into the cemetery. (9) A police officer subsequently arrived at the cemetery in response to a call reporting a suspicious vehicle on the grounds. (10) The officer encountered Alexander Grunke, noticed his supplies, and placed him in custody. (11)

The Grunkes and Radke were charged in a Wisconsin state court with damage to cemetery property, attempted criminal damage to property, and attempted third-degree sexual assault. (12) The sexual assault statute prohibits "sexual intercourse with a person without the consent of that person." (13) The statute provides, in relevant part, that "'[c]onsent' ... means words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact," (14) and establishes a presumption that mentally ill persons (15) or persons "unconscious or for any other reason ... physically unable to communicate unwillingness to an act" (16) are incapable of consent. Finally, section 940.225(7) states that the statute "applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse." (17)

The trial court dismissed the attempted third-degree sexual assault counts, holding that the sexual assault statute did not criminalize necrophilia. (18) The court of appeals affirmed. (19) The court rejected the prosecution's argument that section 940.225(7) indicates that the statute was intended to cover acts with a corpse even if the defendant had not caused the death of the victim. Although the court admitted that "this argument is appealing on its face," (20) it concluded that "viewing the entire statute in context and in light of its purpose of protecting bodily security, ... the statute is ambiguous." (21) As a result, the court examined the legislative history of the provision. (22) It concluded that the provision was passed as a response to State v. Holt, (23) as indicated by the timing of the amendment and its accompanying drafting comments. (24) In Holt, the Wisconsin Court of Appeals suggested that the prosecutor in a murder-rape case was required to prove that the victim was still alive when the sexual assault took place. …

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